Industry Committee on June 5th, 2007

[Julie D'Amours]

In the government's view, what is reproduced on a commercial scale is better left for determination by the courts. The courts have all the facts to make the proper decision on this. It is difficult for the legislator to draw the line between what's reproduced on a commercial scale and what's not. There are so many different situations where artists make works. That's why we felt it would be much wiser to leave this issue to the courts.

That being said, the artists are not totally in the dark, either. I think “on a commercial scale” is a term that is at least being used in the intellectual property context, namely in discussions relating to anti-counterfeiting.

The judge will look to whether the purpose of the reproduction is to distribute widely for commercial purposes or not. That's why we feel it's inappropriate for the legislator to try to delineate this kind of concept.

[Hedy Fry, Liberal, Vancouver Centre, BC]

I'm not belabouring this. What I'm trying to say is that if somebody isn't very clear about what this means and they have to go to court, I think it's not what any of us want to see. Nor do I think the Olympic Games wants to be marred with taking some poor little artist.... Artists are not always wealthy enough to be able to go to court to defend themselves for producing 100 prints of their work.

Is there something you could do in the regulations that would clarify it for people who do not have the money to go to court to deal with this after the fact? People won't do anything if they're afraid they're going to be breaking rules. They may just do nothing; you would stifle any kind of creativity.

I understand what you're saying. I agree with it. But I really think you don't want to hear later on that the Vancouver Olympic committee went after some poor struggling artist who made 100 prints and didn't believe that was going to cause him trouble, or who didn't want to do anything because they were afraid they'd be in violation.

I think that clarification is what most of us are trying to get at. It's not that we disagree with the legislation. We just want to make sure that at the end of the day it doesn't get a black eye by saying you beat up on some little guy. That's all.

Can it be in the regulations?

[Susan Bincoletto]

As my colleague mentioned, these are terms of art common to a number of intellectual property statutes, whether we talk about “commercial scale” or “distribution” in the Copyright Act. We never really quantify what “distribution”, “sale”, or “possession for future sale” mean. This is usually left to the court, because on a case-by-case basis, five may be commercial, if it's a valuable product, or ten thousand could be commercial.

So to put it in a regulation, be specific, and give guidance to the court might actually work against it.

[The Chair, Conservative, James Rajotte]

I have Mr. Masse, Mr. Malo, Mr. Van Kesteren, and then Mr. Carrie.

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Those were essentially the concerns that I had.

In legal interpretation, for example, you have sketch artists who often produce quite similar renditions of things, even here in Ottawa. Would that get caught in something like this?

They have two or three of the same sketches laid out, and others already drawn. They are virtual identical pieces of work. Would they potentially get caught in something like this?

[Julie D'Amours]

In this particular case, because the volume is so low—we're talking about three sketches—even though they are meant to be sold to individuals for their own enjoyment.... I don't want to substitute my judgment for what a judge sees, for that matter, and not having the full facts, but it's possible that in this case a reproduction would not be considered to be on a commercial scale.

There is the question of the purpose of the artist. Why did the artist use a particular protected mark in his artistic work? Also, what does the artist want to do in terms of distribution? And of course there is the question of volume So all of these are factors that will be taken into consideration by a court to determine whether or not an artist has used the mark in connection with a business.

[Brian Masse, NDP, Windsor West, ON]

I don't think that VANOC would go after one particular artist, but the problem that I foresee is potentially you could have, as here in Ottawa, three or four sketch artists producing virtually the same type of picture or material of a landmark. They have three or four copies there every day, trying to peddle them around. When multiple people do this is the concern that might be the problem.

[Julie D'Amours]

Yes.

[The Chair, Conservative, James Rajotte]

Okay, Mr. Masse?

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

[The Chair, Conservative, James Rajotte]

Mr. Van Kesteren.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Thank you, Mr. Chair.

I have a comment.

It's going to be impossible—which is the point that Susan put before the committee—to put a number on this. We have to leave this to the courts.

The amendment is there to protect artists, not to stifle creativity. We have to see the intent there, and the courts understand that too.

Yes, I would love to have perfect legislation that protects everyone, but there's always going to be room for people to wiggle in and out. We have to recognize that the intent of the government in this amendment is to protect artists, not stifle creativity.

I'm comfortable with the amendment.

[The Chair, Conservative, James Rajotte]

Thank you.

Mr. Carrie.

[Colin Carrie, Conservative, Oshawa, ON]

What we're really looking at is commercial intent, so somebody is looking to make a good buck from this, and there has to be some leeway for judges to make these decisions.

[The Chair, Conservative, James Rajotte]

Mr. Byrne.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you, Mr. Chair.

I want to take a bit of a step back for a second to talk about the legality or jurisdictional issues surrounding some of these amendments. We're getting into some fine-line areas.

My understanding is that under section 92, property rights are a provincial jurisdiction. Could you give the committee members a very brief primer to see that this is not subject to a constitutional challenge, that provincial jurisdiction is not being infringed upon?

[Darlene Carreau, Counsel, Industry Canada, Legal Services]

Copyright is specifically named in the Constitution, so any provision dealing with copyright is constitutionally within the jurisdiction of the federal government.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Including trademarks? So this--

[Darlene Carreau]

Trademark is not specifically listed in the Constitution, but falls within the head of power under trade and commerce and power.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you.

[The Chair, Conservative, James Rajotte]

Thank you, that's a good clarification.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 3 as amended agreed to)

[The Chair, Conservative, James Rajotte]

We have a new clause 3.1, which is amendment NDP-2 on page 8. We'll have Mr. Masse speak to that.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

This amendment I'm proposing is to add assurances to aboriginal community groups and not-for-profit community groups. It was good testimony by VANOC in terms of their presentation here, but this amendment is to make sure the Governor in Council is going to issue regulations and rules related to the use of licences and materials and that will be available through a transparent process.

I believe this will give some comfort to some of the symbols being used by the Olympics that go to traditional extents in Canada and beyond and will allow aboriginal and community groups and not-for-profit groups a level of comfort that they will have a clear, defined process on how to use licensing, and that will be brought out through clear regulations from the Governor in Council.

[The Chair, Conservative, James Rajotte]

Thank you.

I have Mr. Carrie.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much, Mr. Chair.

I'd like to defer to our colleagues for comment.

Susan, would you...?